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- This implies that the EPO will assume that entitlement to priority is legitimate, supplied the declaration of priority is made as required beneath Article 88(1) EPC.
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- However, this will be welcome news to patentees because the existence of a rebuttable presumption may make it easier to depend on priority claims, even where the applicant for the European patent application is not the same as the applicant for the precedence application.
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Nevertheless, in a surprising improvement, the Enlarged Board of Attraction also state in their decision that there’s a “rebuttable presumption” that a precedence declare is legitimate, even where the applicant(s) for the European patent utility usually are not identical to the applicant(s) for the priority software. We would counsel that events who are currently in proceedings, the place lack of entitlement to precedence is a key problem, review their case in view of this decision. The EBA further reiterates that the ‘rebuttable presumption’ that the entitlement to precedence exists, discussed almost about query I, totally applies to the scenario addressed in question II also. In follow, this ‘rebuttable presumption’ commonplace will reverse the burden of proof, i.e., “the celebration challenging the subsequent applicant’s entitlement to precedence has to show that this entitlement is missing” (paragraph 110 of the decision)rather than the patentee or applicant. Another specific focal point within the decision is that the EBA have determined that, even the place the applicant(s) for the priority software and the European patent software are different, there’s a “rebuttable presumption” that a priority declare is valid.
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